Compost Odour, a Fifty-Year Storm and Four Hundred Dead Trout
Since 2019 Ballymore Compost has operated a licensed composting facility on a twelve-hectare site in rural Tipperary, producing odour and attracting flies. Its planning permission describes it as a 'green waste composting facility' and contains no odour condition, though its EPA licence requires best available techniques. The Horgan family moved into a newly built house 400 metres downwind in 2022 and say they cannot open windows, hang out washing or use the garden between May and September. Mrs Horgan has logged 63 days of 'unbearable' smell in a diary, and their eldest child has developed a respiratory condition that the GP attributes, on the balance of probabilities, to the flies. In August 2024, after 90 mm of rain in 24 hours - a one-in-fifty-year event - the slurry lagoon overflowed into the Clodiagh river, killing 400 trout on a local angling club's stretch. The lagoon was designed for a one-in-twenty-year event, and the EPA had warned in 2022 that freeboard was inadequate.
1. Advise the Horgans on a claim in private nuisance, including the relevance of their having moved in after the facility began operating.
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The tort. Private nuisance is an unlawful and substantial interference with the claimant's use and enjoyment of land. The Horgans own and occupy their house, so they have standing.
Substantial and unreasonable. Relevant factors: locality (the area is rural, but the activity is industrial rather than agricultural in character); duration and frequency (63 logged days, recurring over successive summers - this is not a one-off); intensity; whether the use is ordinary (using a garden and hanging out washing is ordinary, so no abnormal-sensitivity problem); and the utility of the defendant's conduct, which carries limited weight. A licence does not authorise a nuisance.
Planning permission and coming to the nuisance. The planning permission does not immunise the facility, though it may inform the character of the locality. The fact that the Horgans arrived in 2022, after operations began, is no defence - the classic rule is that a person cannot acquire a right to continue a nuisance merely because the complainant arrived later. Neither the permission nor the prior operation bars the claim.
Evidence. The diary is useful but self-serving; it must be corroborated by neighbours, an environmental consultant's odour assessment, and the EPA's records.
The child's illness. Private nuisance protects enjoyment of land, not personal injury; a claim for the child's respiratory condition sits in negligence, where he must prove a breach of duty, causation and a recognised injury, and the GP's 'balance of probabilities' attribution alone is thin.
Conclusion. A strong nuisance case on odour and flies for loss of amenity, with the child's claim run separately.
2. Assess the angling club's claim arising from the slurry escape, dealing with Rylands v Fletcher, negligence and the available defences.
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Rylands v Fletcher. The elements are: the defendant brought onto its land something likely to do mischief if it escapes; the use was non-natural; the thing escaped; and the escape caused damage. A large slurry lagoon on an industrial composting site is a classic non-natural accumulation of a dangerous substance, and the escape into the river and the fish kill are clear.
Standing. The club must show a proprietary or possessory interest in the fishing - a several fishery or a lease - otherwise it sues in negligence for its economic loss rather than in nuisance or under Rylands.
Act of God. The defence requires an event so extraordinary that no reasonable human foresight could have anticipated it. A one-in-fifty-year rainfall looks impressive, but the lagoon was designed only for a one-in-twenty-year event and the EPA had warned in 2022 that freeboard was inadequate. A foreseeable, warned-of risk is not an act of God, and the escape was contributed to by inadequate capacity rather than natural causes alone.
Statutory authority. A licence is not a mandate to pollute. The defence protects only where the nuisance is the inevitable consequence of doing what is authorised. The licence required best available techniques and adequate freeboard, so compliance was possible and the defence fails.
Negligence. Independently, the failure to act on the EPA's warning is a plain breach of duty to foreseeable downstream users.
Conclusion. The club should plead Rylands, nuisance and negligence in the alternative; strict liability is available and the defences are unlikely to succeed.
3. What remedies should the Horgans and the club seek, and what practical pitfalls should they avoid?
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Injunction or damages. An injunction is the ordinary remedy where the nuisance is continuing and damages would not compensate for it. The court retains a discretion to award damages instead, but exercises it narrowly: where the injury is small, capable of estimation in money, adequately compensated by a small payment, and an injunction would be oppressive. The Horgans cannot use their garden for half the year - the injury is not small, so a full refusal of an injunction is unlikely. A more realistic outcome is a limited injunction: odour-management conditions, a buffer, restricted operating hours, and a review clause.
Money. The Horgans should claim general damages for loss of amenity and enjoyment, plus any proved diminution in value of the house. The club should claim the value of the fish killed, the cost of restocking and any loss of fishing income or members' subscriptions, supported by records.
Pitfalls. First, do not attempt abatement - physically interfering with the facility risks liability and criminal exposure. Second, keep evidence: the diary should record date, time, wind direction, duration and effect, and be backed by neighbours and an expert odour survey. Third, watch limitation: six years for nuisance and for Rylands, with each fresh escape or fresh period of unreasonable interference potentially giving a new cause of action. Fourth, do not let the planning permission or the statutory licence be treated as an answer to the claim - neither authorises a nuisance, and the licence conditions are in fact useful evidence of the standard the operator failed to meet.
Strategy. Bring the EPA's 2022 warning into evidence early; it links the planning history, the licence breach and the escape into a single narrative of known, foreseeable risk.